Pubdate: Wed, 21 Jun 2017
Source: Ottawa Sun (CN ON)
Copyright: 2017 Canoe Limited Partnership
Contact: http://www.ottawasun.com/letter-to-editor
Website: http://www.ottawasun.com/
Details: http://www.mapinc.org/media/329
Author: Andrew Seymour
Page: 9

EIGHT YEAR ODYSSEY

Two trials and tens of thousands of dollars later, man guilty of
traffic offence

After eight years, a pair of trials where he was twice found not
guilty, and a trip to Canada's highest court, an Ottawa construction
worker accused of driving while impaired by marijuana has pleaded
guilty to nothing more than a traffic offence.

It's the end of a long legal saga for Carson Bingley that started with
erratic driving on Merivale Road in May 2009 and led to a Supreme
Court decision that streamlined drugged-driving trials, just as the
country moves toward legalizing marijuana by next July.

On Monday, the 36-year-old pleaded guilty to careless driving under
the Highway Traffic Act and was given a $1,000 fine and one-year
driving prohibition. Court heard he swerved through traffic, drove in
an opposite lane, then hit a parked car in a nearby lot.

Bingley was criminally charged with driving while drug-impaired after
allegedly failing a roadside sobriety test administered by a specially
trained and certified police officer known as a "drug recognition
expert" or DRE.

He was taken to the police station, where he then underwent a 12-part
evaluation for drug impairment that measures things like physical
co-ordination, eye movement, blood pressure, pupil size and muscle
tone. The evaluation, used across North America and Europe, was added
to the Criminal Code in 2008 by the then Conservative government.

The results of Bingley's evaluation - coupled with his admission that
he had used marijuana hours earlier and taken two Xanax - led the DRE
to conclude he was impaired by marijuana.

But as Bingley's experience has shown, proving cases of impairment by
drugs can be difficult. Unlike alcohol, there are no approved roadside
screening devices to determine precise levels of drugs in one's
system. Nor are there currently any legal limits on how much of a drug
is too much to drive a car.

In April, the federal government proposed new offences as part of Bill
C-46 that will make it a crime to drive with more than two nanograms
of THC, the active ingredient in marijuana, Carson Bingley's eight
year legal odyssey after being charged with driving while
drug-impaired ended Monday with a plea to a traffic offence. Bingley
believes his case illustrates the need for more reliable screening
methods for drug-impaired driving. per millilitre of blood. The
legislation will also authorize police to use oral fluid drug
screeners at the roadside to determine whether drugs are present in
the saliva of a driver they suspect has been using drugs. However,
prosecutions will still rely on the evaluation by a DRE at a police
station or the taking of a blood sample.

Outside of court on Monday, Bingley insists he wasn't impaired by
drugs, which motivated him to keep fighting the charges for as long as
he has. Bingley said many of his friends told him he should give up
and just plead guilty.

Bingley believes his experience illustrates the need for reliable
tests to prove someone's impairment.

"By no means do I think people should be out there driving drunk or
under the influence. I have a son, I have a family. I don't want to
see someone get hurt," said Bingley, who has a dated conviction for
possession of marijuana for the purpose of trafficking. "If they have
that law, they need to have the proper instrument to calculate that
with. You have to have the right instrument."

But Bingley's lawyer, Trevor Brown, said he doesn't believe the
Crown's decision to resolve Bingley's case with a plea to a traffic
offence is an indictment of the drugged-driving testing regime.

"It probably says more about how you can successfully prosecute a case
eight years later," said Brown.

In an emailed statement, the Ontario attorney general's ministry said
the Crown carefully considered the public interest in proceeding with
a third trial given the history of the case and Bingley's current
circumstances.

"Plea agreements are about achieving just and appropriate resolutions
in criminal matters while ensuring the effective and efficient use of
valuable court resources," the ministry said.

Since being charged in 2009, Bingley's moved up from his job as an
apprentice labourer to a construction supervisor. Bingley's also the
proud father of a one-and-a-half year old, he said.

Eight years of court dates and being in constant legal limbo have been
an emotional roller-coaster, said Bingley. He estimates the legal
fight has cost him tens of thousands of dollars in legal fees and lost
wages.

However, Bingley's lawyer said he remains concerned about the
reliability of a DRE's evidence given the "weaknesses and frailties"
that were exposed during Bingley's two trials.

In both trials, the successful appeals of the not-guilty verdicts
turned on issues surrounding whether a DRE was an expert witness. In
the first trial, the judge accepted the evidence of the DRE as a "lay"
opinion, but found there was a reasonable doubt as to Bingley's guilt
and acquitted him.

At the second trial, the judge didn't recognize the DRE as an expert
witness following a special hearing known as a voir dire. The DRE's
evidence was ruled inadmissible, prompting another appeal.

Both a summary conviction appeal court and the Ontario Court of Appeal
found that DRE evidence was automatically admissible as expert evidence.

Bingley challenged the finding to the Supreme Court, which agreed with
the Ontario Court of Appeal that DREs don't need to be vetted in a
voir dire since their expertise had been established by Parliament.
Such challenges in every case would be a waste of judicial resources,
the court ruled.

Sgt. John Kiss, manager of the Ottawa police impaired driving
counter-measures program, said the Supreme Court decision was a win
for policing.

"At the end of the day, we achieved a very positive ruling for the
Supreme Court as far as road safety goes," he said.

Kiss said Ottawa police have 16 DREs, but have been training recruits
since 2012 on how to administer the standardized field sobriety
testing. Currently 141 officers can conduct the roadside testing to
determine whether a driver should be taken for further evaluation by a
DRE.

Oral fluid screeners won't be a "silver bullet" like a roadside
alcohol breath test, although Kiss said their eventual approval should
simplify roadside testing.
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MAP posted-by: Matt